Commercial Arbitration Act 2011

Commercial Arbitration Act 2011

No. 50 of 2011

table of provisions

SectionPage

Part 1A—Preliminary

1AAPurposes

1ABCommencement

1ACParamount object of Act

1ADAct to bind Crown

Part 1—General Provisions

1Scope of application (cf Model Law Art 1)

2Definitions and rules of interpretation (cf Model Law Art 2)

2AInternational origin and general principles (cf Model Law Art2A)

3Receipt of written communications (cf Model Law Art3)

4Waiver of right to object (cf Model Law Art 4)

5Extent of court intervention (cf Model Law Art 5)

6Court for certain functions of arbitration assistance and supervision (cf Model Law Art 6)

Part 2—Arbitration Agreement

7Definition and form of arbitration agreement (cfModel Law Art7)

8Arbitration agreement and substantive claim before court (cfModel Law Art 8)

9Arbitration agreement and interim measures by court (cf Model Law Art 9)

Part 3—Composition of Arbitral Tribunal

10Number of arbitrators (cf Model Law Art 10)

11Appointment of arbitrators (cf Model Law Art 11)

12Grounds for challenge (cf Model Law Art 12)

13Challenge procedure (cf Model Law Art 13)

14Failure or impossibility to act (cf Model Law Art 14)

15Appointment of substitute arbitrator (cf Model Law Art15)

Part 4—Jurisdiction of Arbitral Tribunal

16Competence of arbitral tribunal to rule on its jurisdiction (cfModel Law Art 16)

Part 4A—Interim Measures

Division 1—Interim measures

17Power of arbitral tribunal to order interim measures (cf Model Law Art 17)

17AConditions for granting interim measures (cf Model Law Art17A)

Division 2—Preliminary orders

17B

17C

Division 3—Provisions applicable to interim measures

17DModification, suspension, termination (cf Model Law Art 17D)

17EProvision of security (cf Model Law Art 17E)

17FDisclosure (cf Model Law Art 17F)

17GCosts and damages (cf Model Law Art 17G)

Division 4—Recognition and enforcement of interim measures

17HRecognition and enforcement (cf Model Law Art 17H)

17IGrounds for refusing recognition or enforcement (cfModel LawArt 17I)

Division 5—Court-ordered interim measures

17JCourt-ordered interim measures (cf Model Law Art 17J)

Part 5—Conduct of Arbitral Proceedings

18Equal treatment of parties (cf Model Law Art 18)

19Determination of rules of procedure (cf Model Law Art19)

20Place of arbitration (cf Model Law Art 20)

21Commencement of arbitral proceedings (cf Model Law Art 21)

22Language (cf Model Law Art 22)

23Statements of claim and defence (cf Model Law Art 23)

24Hearings and written proceedings (cf Model Law Art24)

24ARepresentation

24BGeneral duties of parties

25Default of a party (cf Model Law Art 25)

26Expert appointed by arbitral tribunal (cf Model Law Art 26)

27Court assistance in taking evidence (cf Model Law Art27)

27AParties may obtain subpoenas

27BRefusal or failure to attend before arbitral tribunal or to
produce document

27CConsolidation of arbitral proceedings

27DPower of arbitrator to act as mediator, conciliator or other nonarbitral intermediary

27EDisclosure of confidential information

27FCircumstances in which confidential information may be disclosed

27GArbitral tribunal may allow disclosure of confidential
information in certain circumstances

27HThe Court may prohibit disclosure of confidential information
in certain circumstances

27IThe Court may allow disclosure of confidential information
in certain circumstances

27JDetermination of preliminary point of law by the Court

Part 6—Making of Award and Termination of Proceedings

28Rules applicable to substance of dispute (cf Model Law Art 28)

29Decision-making by panel of arbitrators (cf Model Law Art 29)

30Settlement (cf Model Law Art 30)

31Form and contents of award (cf Model Law Art 31)

32Termination of proceedings (cf Model Law Art 32)

33Correction and interpretation of award; additional award (cfModel Law Art 33)

33ASpecific performance

33BCosts

33CApplication of Legal Profession Act 2004

33DCosts of abortive arbitration

33EInterest up to making of award

33FInterest on debt under award

Part 7—Recourse Against Award

34Application for setting aside as exclusive recourse against
arbitral award (cf Model Law Art 34)

34AAppeals against awards

Part 8—Recognition and Enforcement of Awards

35Recognition and enforcement (cf Model Law Art 35)

36Grounds for refusing recognition or enforcement (cfModel LawArt 36)

Part 9—Miscellaneous

37Death of party

38Interpleader

39Immunity

40Supreme Court—limitation of jurisdiction

41Court rules

42Regulations

Part 10—Savings and Transitional Provisions

43Savings and transitional provisions

44Regulations of a savings or transitional nature

Part 11—Consequential Amendments

45Repeal

46Consequential amendments

47Repeal of Part and Schedule

______

SCHEDULE—Consequential Amendments

1Audit Act 1994

2Broiler Chicken Industry Act 1978

3Construction Industry Long Service Leave Act 1997

4County Court Act 1958

5Electricity Industry Act 2000

6Essential Services Act 1958

7Fuel Emergency Act 1977

8Gas Industry Act 2001

9Grain Handling and Storage Act 1995

10Instruments Act 1958

11Limitation of Actions Act 1958

12Magistrates' Court Act 1989

13Property Law Act 1958

14Supreme Court Act 1986

15Water Act 1989

16Water Industry Act 1994

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Endnotes

SectionPage

Victoria

SectionPage

Commercial Arbitration Act 2011[†]

No. 50 of 2011

[Assented to 18 October 2011]

Commercial Arbitration Act 2011
No. 50 of 2011

571072B.I-16/8/2011BILL LA INTRODUCTION 16/8/2011

Commercial Arbitration Act 2011
No. 50 of 2011

The Parliament of Victoriaenacts:

571072B.I-16/8/2011BILL LA INTRODUCTION 16/8/2011

Commercial Arbitration Act 2011
No. 50 of 2011

Part 1A—Preliminary

Note

Sections of this Act that contain a reference to the "Model Law" inthe heading are substantially the same as the provisions of the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985 with amendments as adopted by that Commission in 2006) so as to be as uniform as possible with the UNCITRAL Model Law. Some changes have been made to those provisions of the Act based on the UNCITRAL Model Law to amend or supplement the provisions in their application to domestic arbitrations in Victoria or to accommodate modern drafting styles and conventions (for example, provisions are drafted in gender neutral terms and archaisms are replaced with modern alternatives). Notes draw attention to substantive changes. The original numbering of the "articles" of the UNCITRAL Model Law has been retained but converted to references to "sections" and articles containing more than one sentence have been reformatted into subsections. There are a number of additional provisions to those based on the UNCITRAL Model Law.

1AAPurposes

s. 1AA

The purposes of this Act are—

(a)to improve commercial arbitration processes to facilitate the fair and final resolution of commercial disputes by arbitration without unnecessary delay or expense; and

(b)to make consequential amendments to other Acts; and

(c)to repeal the Commercial Arbitration Act 1984.

1ABCommencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 May 2012, it comes into operation on that day.

1ACParamount object of Act

(1)The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

(2)This Act aims to achieve its paramount object by—

(a)enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and

(b)providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.

(3)This Act must be interpreted, and the functions of an arbitral tribunal must be exercised, so that (asfar as practicable) the paramount object of this Act is achieved.

(4)Subsection (3) does not affect the application of section 35 of the Interpretation of Legislation Act 1984 for the purposes of interpreting this Act.

1ADAct to bind Crown

s. 1AD

This Act binds the Crown in right of Victoria and, in so far as the legislative power of the Parliament of Victoria permits, the Crown in all its other capacities.

Note

There is no equivalent to this section in the Model Law.

______

Part 1—General Provisions

1Scope of application (cf Model Law Art 1)

s. 1

(1)This Act applies to domestic commercial arbitrations.

Note

The International Arbitration Act 1974 of the Commonwealth covers international commercial arbitrations and the enforcement of foreign arbitral awards.

(2)The provisions of this Act, except sections 8, 9, 17H, 17I, 17J, 35 and 36, apply only if the place of arbitration is in Victoria.

(3)An arbitration is domestic if—

(a)the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in Australia; and

(b)the parties have (whether in the arbitration agreement or in any other document in writing) agreed that any dispute that has arisen or may arise between them is to be settled by arbitration; and

(c)it is not an arbitration to which the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) applies.

(4)For the purposes of subsection (3)—

(a)if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and

(b)if a party does not have a place of business, reference is to be made to the party's habitual residence.

(5)This Act does not affect any other Act by virtue of which certain disputes may not be submitted to arbitration or may be submitted to arbitration only according to provisions other than those of this Act.

(6)Subject to subsection (5), this Act applies to arbitrations provided for in any other Act as if—

(a)the other Act were an arbitration agreement; and

(b)the arbitration were pursuant to an arbitration agreement; and

(c)the parties to the dispute which, by virtue of the other Act, is referred to arbitration were the parties to the arbitration agreement—

s. 1

except in so far as the other Act otherwise indicates or requires.

Model Law note

The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions: any trade transaction for the supply or exchange of goods or services; distribution agreement; commercial representation or agency; factoring; leasing; construction of works; consulting; engineering; licensing; investment; financing; banking; insurance; exploitation agreement or concession; joint venture and other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail or road.

Note

This section differs from the Model Law to the extent necessary to apply Art 1 as incorporated in this Act to domestic commercial arbitrations. Section 1AD contains provisions that also relate to the application of this Act.

2Definitions and rules of interpretation (cf Model Law Art 2)

s. 2

(1)In this Act—

arbitral tribunal means a sole arbitrator or a panel of arbitrators;

arbitration means any domestic commercial arbitration whether or not administered by a permanent arbitral institution;

arbitration agreement—see section 7;

confidential information, in relation to arbitral proceedings, means information that relates to the arbitral proceedings or to an award made in those proceedings and includes the following—

(a)the statement of claim, statement of defence and all other pleadings, submissions, statements or other information supplied to the arbitral tribunal by a party;

(b)any information supplied by a party to another party in compliance with a direction of the arbitral tribunal;

(c)any evidence (whether documentary or otherwise) supplied to the arbitral tribunal;

(d)any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal;

(e)any transcript of oral evidence or submissions given before the arbitral tribunal;

(f)any rulings of the arbitral tribunal;

(g)any award of the arbitral tribunal;

disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information;

domestic commercial arbitration—see section 1;

exercise a function includes perform a duty;

function includes a power, authority or duty;

interim measure—see section 17;

Model Law means the UNCITRAL Model Law on International Commercial Arbitration (asadopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006);

s. 2

party means a party to an arbitration agreement and includes—

(a)any person claiming through or under a party to the arbitration agreement; and

(b)in any case where an arbitration does not involve all of the parties to the arbitration agreement, those parties to the arbitration agreement who are parties to the arbitration;

the Court means, subject to section 6(2), the Supreme Court.

Note

The definitions of arbitration agreement, confidential information, disclose,domestic commercial arbitration, exercise, function, interim measure, Model Law, party and the Court are not included in the Model Law.

(2)Where a provision of this Act, except section 28, leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorise a third party, including an institution, to make that determination.

(3)Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refers to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.

(4)Where a provision of this Act, other than sections 25(1)(a) and 32(2)(a), refers to a claim, it also applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such counter-claim.

(5)Notes (other than the Model Law note to section1) included in this Act do not form part of this Act.

Note

This provision is not included in the Model Law.

(6)A heading to a section of this Act (other than sections 1AA, 1AB, 1AC and 1AD) does not form part of this Act.

Note

This provision is not included in the Model Law.

2AInternational origin and general principles(cf Model Law Art2A)

s. 2A

(1)Subject to section 1AC, in the interpretation of this Act, regard is to be had to the need to promote so far as practicable uniformity between the application of this Act to domestic commercial arbitrations and the application of the provisions of the Model Law (as given effect by the International Arbitration Act 1974 of the Commonwealth) to international commercial arbitrations and the observance of good faith.

(2)[omitted]

(3)Without limiting subsection (1), in interpreting this Act, reference may be made to the documents relating to the Model Law of—

(a)the United Nations Commission on International Trade Law; and

(b)its working groups for the preparation of the Model Law.

(4)Subsection (3) does not affect the application of section 35 of the Interpretation of Legislation Act 1984for the purposes of interpreting this Act.

Note

This section differs from the Model Law. Art 2A(1) has been changed as a consequence of the application of the Act to domestic (instead of international) commercial arbitrations. Art 2A(2) is omitted because it is covered by the provision referred to in section1AC(4). Subsections (3) and (4) reflect section 17 of the International Commercial Arbitration Act 1974 of the Commonwealth.

3Receipt of written communications (cf Model Law Art3)

s. 3

(1)Unless otherwise agreed by the parties—

(a)any written communication is taken to be received if—

(i) it is delivered to the addressee personally; or

(ii)it is delivered at the addressee's place of business, habitual residence or mailing address; or

(iii)if none of these can be found after making a reasonable inquiry, it is delivered to the addressee's last-known place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it; and

(b)the communication is taken to have been received on the day it is so delivered.

(2)The provisions of this section do not apply to communications in court proceedings.

4Waiver of right to object(cf Model Law Art 4)

s. 4

A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating the party's objection to such non-compliance without undue delay or, if a time-limit is provided for stating the party's objection, within such period of time, is taken to have waived the party's right to object.

5Extent of court intervention (cf Model Law Art 5)

In matters governed by this Act, no court must intervene except where so provided by this Act.

6Court for certain functions of arbitration assistance and supervision(cf Model Law Art 6)

(1)The functions referred to in sections 11(3) and (4), 13(4), 14(2), 16(9), 17H, 17I, 17J, 19(6), 27, 27A, 27B, 27H, 27I, 27J, 33D, 34 and 34A are, subject to subsection (2), to be performed by the Supreme Court.

(2)If—

(a)an arbitration agreement provides that the County Court or the Magistrates' Court is to have jurisdiction under this Act; or

(b)the parties to an arbitration agreement have agreed in writing that the County Court or the Magistrates' Court is to have jurisdiction under this Act and that agreement is in force—

the functions are to be performed, in relation to that agreement, by the County Court or the Magistrates' Court, as the case requires.

Note

s. 6

This section differs from the Model Law to the extent that it relates to functions conferred on the Court with respect to domestic arbitrations that are not referred to in the Model Law.

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Part 2—Arbitration Agreement

7Definition and form of arbitration agreement(cfModel Law Art7)

s. 7

(1)An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2)An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3)The arbitration agreement must be in writing.

(4)An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.

(5)The requirement that an arbitration agreement be in writing is met by an electronic communication if the information contained in it is accessible so as to be useable for subsequent reference.

(6)In this section—

data message means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy;

electronic communication means any communication that the parties make by means of data messages.

(7)Furthermore, an arbitration agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

(8)The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.

Note

This section is substantially the same as Option 1 set out in Art 7 of the Model Law.

8Arbitration agreement and substantive claim before court(cfModel Law Art 8)

s. 8

(1)A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.

(2)Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court.

9Arbitration agreement and interim measures by court(cf Model Law Art 9)

It is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant the measure.